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MEMBER DIARY

2013 Ballot Questions- Part 1: Washington’s I-517 & Direct Democracy

With Election Day 2013 nearing, some note should be taken of proposed ballot questions from around the country. This is an off year election with only two races of significance- the Virginia and the New Jersey gubernatorial elections with only one of them (Virginia) being of any real interest. Likewise, there is a dirth of ballot questions this year that need to be looked at with the first in this eight part series beginning in Washington with the I-517 initiative which is designed to provide legal protections to those obtaining signatures for ballot initiative efforts. In essence, it is a ballot initiative on ballot initiatives.

At first glance, one thinks, “So what?” But, the issue is one that is deeper than one thinks. Citizen-sponsored initiatives are generally available in all states provided they obtain enough signatures. The actual procedures vary from state to state with some initiatives forwarded to the legislature, some “advisory,” or non-binding. Other states refer the effort to the legislature and if they fail there, or the legislative session ends with no action, they automatically go on the ballot.

Nationally, there are no referendums or ballot initiatives and for good reason. This is a form of direct democracy and our Founders bluntly and explicitly rejected that notion for government, at least at the national level. The main fear is what was and is known as the “tyranny of the majority.” A simple majority of the citizenry voting on issues of vital importance (to them) would potentially trample the rights of minorities within the population (not necessarily racial minorities, but any possible minority). Instead, a republican form of democracy was chosen under the belief that legislatures would act as a needed filter to act in the best interests of all and not necessarily react to the political whims of the day.

But, state governments generally had the option, but rarely used ballot questions or referendum. The widespread use began during the Progressive Era amid calls for trust busting and a general distrust of moneyed interests. Believing that a limited form of direct democracy would counter the perceived influence of money in the legislative and political processes, ballot initiatives begun by citizens took off. Still today, the process is available in only 24 states. The first ballot initiative occurred in 1898 in South Dakota.

Although they make intuitive sense on some level, the entire process- even at the state level- has many drawbacks. Rather than empowering people, the process actually empowers special interest groups who have greater financial leverage to support or oppose initiatives that directly affect them. The idea that little gray-haired old ladies are exercising their state constitutional rights is quaint, but false. In fact, whole public relations industries have grown up around the idea of ballot initiatives. Secondly, not to mince words, but there is a certain segment of the voting population that is either naturally stupid, or stupid by circumstance. By this, one means that the voting population either lacks the time or effort to educate themselves regarding the pros and cons of the question. Instead, they defer to the message merchants.

Generally, the process begins by obtaining a requisite number of signatures on a petition. That number is usually tied to previous voter turnout figures in an election. In Washington state, I-517 attempts to strengthen the initiative process in that state. The measure would implement penalties for intimidating, harassing, interfering with or retaliating against petition drives. Second, it would require that once the number of signatures are obtained, the initiative would automatically go on the ballot. Third, any initiative must be submitted to the secretary of state 10 months before the election. This new initiative would expand that time period out to 16 months, thus giving petition drive members additional time to obtain signatures. Fourth, any pre-election legal challenges would be barred, although there may be challenges after the election.

Nothing against the fine folks in Washington- especially since I live in a state that allows ballot questions also- but if you are going to dally in this exercise of direct democracy, there have to be certain rules in place, just as there should be rules in place to vote in the first place. Apparently this initiative was originally fueled by legal challenges against local referendums barring the use of red light-ticketing cameras. Its proponents note that “knowing that voters would reject the cameras, local politicians and out-of-state red light camera companies sued the voters…” to stop the initiative. They further note that since 1912, the number of signatures required has increased tenfold while the time period to obtain those signatures has remained constant. They are simply arguing to raise that limit to the national average.

Regarding that last item listed above, one cannot automatically eliminate or wish away legal challenges. This proposal would put off those challenges until after the election. However, many, many times ballot questions are approved and later overturned due to these legal challenges because they violate either the state or federal Constitution in some manner. While there are some conservatives who feel that the will of the people expressed by their votes should overcome any judicial interference, they are simply violating the express desires and vision of our Founders and playing into the “tyranny of the majority.”

The proponents claim that annually there are scores of people who want to sign a petition, but feel bullied into not doing so. However, I have yet to find an example they can cite other than general suggestions that moneyed interests and career politicians have “bullied” people into not signing petitions. They cite the number 16 “in recent years” where initiatives were blocked from a public vote. Yet, they fail to mention the number of initiatives actually approved for a vote.

The person behind I-517 is Tim Eyman, a conservative political activist in the state whose occupation appears to be proposing ballot questions. Since 1998, he is responsible for 19 initiatives- 12 were voted down. Of the 7 that passed, five were later ruled unconstitutional (once by the United States Supreme Court) and another was rescinded by the legislature after two years. In fact, Eyman paid himself $165,000 in 2002 from campaign contributions in his efforts to get an initiative passed. In 2012, he sponsored an initiative that would have required a super-majority in the legislature to increase taxes. It sounds great from a conservative viewpoint and was approved by the voters with 64% of the vote, although later ruled unconstitutional. Yet while Eyman portrayed the effort as helping the taxpayer, greater than 95% of campaign contributions came from large companies- oil, food processors, beer companies, soda makers, etc. One can make a reasonable conclusion that this time out, Eyman’s sympathies do not lie with “the people,” but with making Tim Eyman’s job easier and more profitable.

Perhaps the biggest complaint- and a valid one- is that words like “harass,” “intimidate,” and “retaliate” can be rather vague. Thus, would the owner of a small store who posts a “NO SOLICITATION” sign in their window violate one of these actions? And if the reader is like me, I personally do not appreciate people sticking petitions in my face as I walk into a grocery store or Home Depot. It is one thing to leave a flyer on my windshield telling me what they are for and there is a table with a petition outside the store and quite another to be “harassed” or “intimidated” by people seeking my signature on a petition. In Washington itself, the office of the secretary of state has noted that they annually receive more complaints from people against canvassers than they do from canvassers being harassed by store owners. The law would create a 25-foot zone for private property rights with everything fair game outside that zone. It would allow canvassers to enter sporting events- including high school football games- to obtain signatures, even public libraries.

If the case is strong enough for the purpose of the petition, then intrusiveness on the part of canvassers which violate personal property rights should not be required. As the secretary of state has noted, most of the complaints received are against these canvassers, not the other way around. They also note they receive many calls from business owners asking their rights in keeping these people at bay.

Admittedly, Americans have a constitutional right to petition the government for a redress of grievances. And given the number of such initiatives making it to the ballot in Washington in recent years- including the many by Eyman himself- one fails to see the problem requiring such a drastic tipping of the scales. As some legal scholars have noted, if passed, it is likely unconstitutional since it infringes upon personal property rights. The most recent polls indicate that 58% of those polled indicate they will vote “YES” on the question come Election Day? Do they want to open themselves and the state to costly litigation most likely to end in a judicial loss? Imagine if passed and it goes into effect and there is a plethora of initiatives placed on the ballot that later are ruled unconstitutional. Imagine the costs to the state and local governments. Do Washington taxpayers want to open themselves to costly litigation in the future to allegedly fix a system that is not broken? All to aggrandize Tim Eyman? Remember that today it may be conservative activist Tim Eyman, but tomorrow it may be George Soros. And quite frankly, a liberal canvasser is much more obnoxious than a conservative one. Simply, the current rules in Washington have not been a great hindrance to ballot initiatives, but they have been to the multi-million dollar dollar ballot initiative business. If the question is of such importance to sometimes use this form of direct democracy, then no law stands in the way of obtaining signatures. If approved, Washington voters may have more questions than candidates to vote upon on future Election Days. They may as well be California.